The Hill (Op-Ed)
By Stuart Shapiro
March 9, 2017
Well, that didn't take long. After years of complaining about President Obama using executive powers to usurp the law, President Trump's Department of Homeland Security (DHS) issued guidance late last month that looks a lot like all the actions that candidate Trump and his supporters criticized. The guidance instructs immigration enforcement personnel to expand their priorities in detaining and deporting undocumented immigrants.
In other words, it is the executive branch changing policy on its own.
There are two ways of looking at the legal status of this guidance document. Both ways are problematic for the Trump administration. The more problematic is that it is a violation of the Administrative Procedure Act (APA). Under this interpretation, DHS should have issued a regulation and accepted public comment. Agencies issue guidance documents frequently and many have argued that they do this to avoid the requirements of the APA and other procedures they are required to follow when issuing a regulation.
The legal status of guidance documents is a contested question and probably should vary from circumstance to circumstance. But many of those who have most loudly criticized these documents as executive branch overreach are defenders of the current occupant of the Oval Office. They certainly criticized President Obama's use of guidance to reset immigration enforcement priorities as unconstitutional or illegal.
While they move in the opposite direction, Trump's instructions are the same type of action as the one taken by Obama.
Even if the use of a guidance document rather than a regulation to implement such a large policy change is legitimate, there are still problems with it. DHS ignored numerous requirements within the executive branch for guidance documents, such as those issued by the Office of Management and Budget (OMB).
For example, "economically significant guidance documents" — those that have an impact of more than $100 million — are required by OMB to be put out for public comment like regulations under the APA. Any credible economic analysis will likely show that the impact of this order is greater than this threshold — just the cost of hiring of the additional customs agents, alone, will exceed it.
But DHS did not put this guidance out for public comment.
Finally, the recent executive order requiring agencies to find offsets for regulatory costs appears to have been ignored in this instance. The OMB bulletin implementing the order says that OMB has discretion to require cost offsets for guidance documents.
Did the OMB review the new DHS guidance? Given what are likely very large costs for the U.S. economy from deporting millions of immigrants, why wasn't DHS asked to find ways to offset these costs?
No one should be surprised, however, that President Trump failed to follow these requirements curbing executive power — even the one he put in place himself two weeks ago. Presidents in general tend to try to expand their power to the largest extent possible. And this president seems particularly interested in maximizing executive authority.
As always, with a compliant Congress, it will be up to the courts to rein in the president and his agencies.
For more information, go to: www.beverlyhillsimmigrationlaw.com